A big slap on our judiciary
“In strict adherence to the complementarity principle, the ICC is not a court of first instance but a court of last resort.
Unperturbed. To this day, my former boss Rodrigo R. Duterte remains calm amid the brouhaha generated by the International Criminal Court’s resumption of its preliminary investigation into the war on drugs campaign from 2016 to 2019 during his presidential tenure. It will also look into the killings in Davao City between 2011 and 2016 when he served as local chief executive.
PRRD has not been indicted of any crime. The ICC has yet to determine his culpability or complicity in the crimes against humanity of murder. As a former head of state, Duterte is no longer immune from suit so anyone can file a legal case against him. Nonetheless, he has consistently stated his willingness to face all his accusers in a court of law. But only in Philippine courts.
Duterte would never subject himself to the jurisdictional reach of the ICC or any foreign tribunal.
Principle of complementarity
As his counsel and compañero, I stand by his position. While the Philippine criminal justice system is far from perfect, it is functional. Our economic and political systems and other democratic institutions are robust. In short, the Philippines is not a “banana republic.”
Conversely, the ICC has investigated cases in states such as Ukraine, Libya, Afghanistan, Congo, Myanmar, and Venezuela. These nations are either torn by international conflict or civil wars, ruled by the military, or plagued by economic crises. I do not think their judiciaries are as mature and competent as ours. Thus, I find it insulting that the ICC has unwittingly lumped the Philippines with countries that have undemocratic or unstable governments.
The Hague Court states that it is not a substitute for national authorities. When we ratified the Rome Statute in 2011, we did not surrender our sovereignty and jurisdiction to prosecute international crimes in our territory.
In strict adherence to the complementarity principle, the ICC is not a court of first instance but a court of last resort. The national legal institutions have the primary jurisdiction and precedence over perpetrators of the vilest crimes of international concern. The tribunal can only intervene if it can fully establish that a state party is unwilling or unable to carry out fair proceedings.
Dismal ICC record
In reopening the case, the tribunal expressed “dissatisfaction” with the steps taken by the Philippine government. Weighed against the number of individuals killed in anti-drug operations, the tribunal found lacking the 302 reviewed cases by the Department of Justice.
How can the ICC roundly dismiss the government’s efforts to hold individuals accountable for extra -legal killings?
The judicial body itself is handicapped institutionally, thereby rendering some of its decisions practically inutile. The result: very low prosecution and conviction rate.
In the tribunal’s 20-year existence, how many cases have resulted in a conviction? One.
The conviction is out of the 31 cases investigated by the judicial body since it entered into force in 2002. According to a 2022 web article by Matt Killingworth for The Conversation, the ICC conducted its first trial in 2006 and announced its first conviction in 2012. Given a 20-year budget of nearly 1.5 billion euros, it has convicted only 10 individuals and acquitted four.
By its admission, the ICC does not have a police force and relies on the cooperation and support of countries worldwide to make arrests and enforce sentences. It issued 38 arrest warrants but was able to detain only 21 at The Hague detention center, thanks to the cooperation of the state parties concerned.
Without this special arrangement, the ICC investigation and related matters become futile. Pursuing a preliminary investigation without the full cooperation of the Marcos administration would be a waste of time and resources on the ICC’s part. In 2018, we withdrew our membership in the ICC.
In their quest for true justice, the families of the victims of extrajudicial executions should file cases against government officials and police enforcers before our local courts. The ICC must respect the country’s autonomous exercise of its sovereign right and responsibility to prosecute international crimes domestically.
“Pursuing a preliminary investigation without the full cooperation of the Marcos administration would be a waste of time and resources on the ICC’s part.